“Arms” and the 2nd Amendment

Second Amendment

“ARMS”

“Arms” and the Second Amendment

The particular “Arms” that WE THE PEOPLE had in mind in the late 1700s were the “Arms” of a then-contemporary member of the Militia familiar in their own personal experiences. Thus, in its first Militia Act, Congress required that

“every citizen * * * enrolled [in the Militia] * * * shall * * * provide himself with a good musket or firelock, a sufficient bayonet * * * , two spare flints, and * * * a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, * * * shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter pound of powder”.(footnote 1)

Almost a century later, Congress reaffirmed those requirements. (footnote 2) Nonetheless, THE PEOPLE could never have originally intended that only the particular types of “Arms” with which individuals could provide themselves in the late 1700s and 1800s would always uniquely define and delimit “the right of the people to keep and bear Arms”, no matter what improvements in firearms supervened over the years. Even Congress did not believe that, because in 1874 it appropriated moneys “to be paid out * * * for the purpose of providing arms * * * for the whole body of the militia, either by purchase or manufacture”; (footnote 3) and in 1887 and 1900 it provided that “the purchase or manufacture of arms * * * for the militia * * * shall be made * * * as such arms * * * are now manufactured or otherwise provided for the use of the Regular Army” (footnote 4)—which enabled the Militia to be provided with up-to-date arms at public expense. So the noun “Arms” must be construed in a generic—and therefore expandable, “living”—sense, in terms of what equipment, at a particular time and in a particular place, will enable a “Militia” to be sufficiently “well regulated” that it can effectively provide “the security of a free State”. (footnote 5)

The particular ‘Arms’ that WE THE PEOPLE had in mind in the late 1700s were the ‘Arms’ carried by light infantrymen as Congress reaffirmed by law 1792, 1874, 1887 and 1900.

The “Arms” Congress specified in 1792 and then again in 1874, 1887, and 1900 were, first, the “Arms” typically carried by a light infantryman, irregular, guerrillero, partisan, or franc-tireur in those times (because the Militia employed the tactics of all such fighters, depending on circumstances); and, second, the “Arms” generally available to individuals in the free market that would serve those purposes—from which the deduction is inescapable that Congress understood such types and that source of “Arms” to be within “the right of the people to keep and bear Arms”. So, today, “Arms” would not be limited to “musket[s]”, “firelock[s]”, or “good rifle[s]” with flintlock or percussion actions, or to the firearms “the Regular Army” carried in 1887 or 1900, but would embrace any and every type of long gun and hand gun private firearms manufacturers might produce that could in any way serve any of the purposes for which modern Militiamen might be deployed—including the ubiquitous semiautomatic (or even burst-fire) rifle in a typical military caliber, equipped with a detachable magazine, pistol grip, flash suppressor, and bayonet lug, which contemporary manufacturers supply in numerous varieties and in great numbers to the private market, and which in one form or another are “now manufactured or otherwise provided for the use of the Regular Army”—which enabled the Militia to be provided with up-to-date arms at public expense. (footnote 1)

Footnotes:

1.) An act to amend section sixteen hundred and sixty-one of the Revised Statutes, making an annual appropriation to provide arms and equipments for the militia, Act of 12 February 1887, CHAP. 129, § 3, 24 Stat. 401, 402; An Act To amend section one of the Act of Congress approved February twelfth, eighteen hundred and eighty-seven, entitled “An Act to amend section sixteen hundred and sixty-one of the Revised Statutes, making an annual appropriation to provide arms and equipments for the militia”, Act of 6 June 1900, CHAP. 805, 31 Stat. 805. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1877.

[T]he noun “Arms” must be construed in a generic—and therefore expandable,“living”—sense, in terms of what equipment, at a particular time and in a particular place, will enable a “Militia” to be sufficiently “well regulated” that it can effectively provide “the security of a free State” (2nd Amendment). (footnote 6)

“The character, quality, and even quantity of “Arms” that come within “the right of the people to keep and bear” for the purpose of being able to serve in “well regulated Militia” self-evidently depend upon the technology of the period in question.” (footnote 7)

Footnotes

1.) An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States, Act of 8 May 1792, CHAP. XXXIII, § 1, 1 Stat. 271, 271.

2.) Revised Statutes of the United States (1873-1874), TITLE XVI, THE MILITIA, § 1628, 18 Stat. 285, 285.

3. ) Revised Statutes of the United States (1873-1874), TITLE XVI, THE MILITIA, § 1661, 18 Stat. 285, 290.

4.) An act to amend section sixteen hundred and sixty-one of the Revised Statutes, making an annual appropriation to provide arms and equipments for the militia, Act of 12 February 1887, CHAP. 129, § 3, 24 Stat. 401, 402; An Act To amend section one of the Act of Congress approved February twelfth, eighteen hundred and eighty-seven, entitled “An Act to amend section sixteen hundred and sixty-one of the Revised Statutes, making an annual appropriation to provide arms and equipments for the militia”, Act of 6 June 1900, CHAP. 805, 31 Stat. 805.